[00:00:04] Speaker 02:
Good morning, Your Honors.

[00:00:05] Speaker 02:
May it please the Court?

[00:00:07] Speaker 02:
My name is Thomas Bruin, and I'm counsel for the Appellant Forward, Inc.

[00:00:12] Speaker 02:
This action is a citizen suit brought under the ex parte young doctrine against Secretary McComber, Secretary of the California Department of Corrections and Rehabilitation, and Director Lasso, Director of the California Department of General Services.

[00:00:30] Speaker 02:
The purpose of this action is to stop an ongoing violation of the Federal Resource Conservation and Recovery Act involving ongoing and persistent soil and groundwater contamination occurring at the state facilities which the Appalachians control and manage near Stockton, California.

[00:00:52] Speaker 02:
The state facilities are adjacent to my client's forward landfill.

[00:00:58] Speaker 02:
We believe the court erred in dismissing our complaint based on a facial challenge brought under Rule 12B1, because we believe the court did not follow what we think is controlling Ninth Circuit precedent in the case of Natural Resources Defense Council versus Caltrans.

[00:01:19] Speaker 02:
Just briefly to describe the facts of that case, that was a citizen suit brought under the Clean Water Act against the director of Caltrans,

[00:01:27] Speaker 02:
alleging that Caltrans facilities in Southern California were causing stormwater pollution in violation of the Clean Water Act.

[00:01:37] Speaker 02:
The holding in that case was based on the fact that Caltrans had a duty to comply with RCRA and specifically that the director of Caltrans had a duty to comply with RCRA.

[00:01:51] Speaker 02:
One of the quotes from NRDC which is followed in a number of other

[00:01:55] Speaker 02:
cases is it would seem reasonable then that Congress implicitly intended to authorize citizens to bring ex-party young suits against state officials with the responsibility to comply with Clean Water Act standards.

[00:02:12] Speaker 05:
So Council, in this case, would there be a lower level official that would have been more appropriate?

[00:02:18] Speaker 02:
Well, we think not.

[00:02:20] Speaker 02:
And let me explain.

[00:02:22] Speaker 02:
If you look at the fact pattern in NRDC and also the fact pattern in Committee to Save, McCollum Me River versus East Bay Mutt, which involved an action against the members, the Central Valley Regional Water Board.

[00:02:36] Speaker 02:
And that case had to do with a containment failure, an acid mine drainage containment failure at the Penn Mine that the Regional Water Board had general supervisory control over.

[00:02:49] Speaker 02:
So if you were to imagine a organizational chart of these two departments, you'd have the secretary, you'd have the director, and then you'd have an assistant secretary and director, and you'd go down to, let's take the prison facilities.

[00:03:03] Speaker 02:
Yeah, why not just sue the wardens of each of the facilities?

[00:03:05] Speaker 02:
Well, because they're in charge of the inmates, not in charge of the facilities.

[00:03:09] Speaker 02:
And the problem, Your Honor, is if you look at the way these types of... What's the distinction?

[00:03:14] Speaker 05:
So you're saying that they couldn't order

[00:03:18] Speaker 05:
them to stop using that laundry that causes the pollutant?

[00:03:23] Speaker 02:
Well, it could be, but the point I want to make is that oftentimes in contamination cases it's difficult to identify the precise cause of the contamination or any official who is actually involved in some affirmative act that caused the contamination.

[00:03:38] Speaker 02:
Under RCRA, the existence of a groundwater plume, which an agency or a person has caused, is an ongoing violation of RCRA.

[00:03:46] Speaker 02:
So my point being that the person who caused the problem may not be able to be identified.

[00:03:52] Speaker 02:
And even if they could, they may not have the authority to fix the problem.

[00:03:56] Speaker 02:
In RW versus Columbia Basin.

[00:04:00] Speaker 05:
I guess what's the authority to say that the wardens don't have the authority to fix the problem?

[00:04:05] Speaker 05:
Because we know the allegation is from those three facilities, right?

[00:04:09] Speaker 05:
And so the person in charge of those three facilities should be able to fix the problem.

[00:04:14] Speaker 02:
Well, Your Honor,

[00:04:17] Speaker 02:
Perhaps.

[00:04:18] Speaker 02:
The cleanup of groundwater requires millions of dollars over many years.

[00:04:24] Speaker 02:
Is the warden going to have the authority to authorize contracts with their parties, to make budgetary decisions, in order to fix the problem?

[00:04:34] Speaker 02:
As I was about to say, in the case of RW versus Columbia Basin College.

[00:04:38] Speaker 02:
I'm sorry.

[00:04:38] Speaker 05:
I thought it was an injunctive relief telling them to stop.

[00:04:41] Speaker 05:
But you're saying they also have to fix what's happened in the past?

[00:04:47] Speaker 02:
You can't do that under our expertise.

[00:04:49] Speaker 02:
This is an ongoing violation.

[00:04:51] Speaker 02:
So the presence of contaminants, the federal courts treat as an ongoing violation of RCRA, not a past violation.

[00:04:58] Speaker 02:
And as we pointed out, the groundwater contamination at the facilities is increasing.

[00:05:03] Speaker 02:
So we believe the question is, who can provide the remedy?

[00:05:06] Speaker 02:
As I was about to say, under the RW versus Columbia Basin College case, we have to show that the state official

[00:05:14] Speaker 02:
being brought into court under ex parte young has the power to provide the relief ordered by the court.

[00:05:21] Speaker 02:
So we have alleged in this case in response to a facial challenge that the appellees have that power and that only they have that power to fix the problem.

[00:05:31] Speaker 02:
Now you may be right your honor that factually there are some lower official who could actually have the ability to fix the problem.

[00:05:39] Speaker 02:
I don't believe there is such a lower level official.

[00:05:41] Speaker 02:
I don't think we can identify them.

[00:05:43] Speaker 02:
But even if we could, that's a factual question.

[00:05:48] Speaker 02:
This is a facial challenge, where you have facts on the merits intertwined with subject matter jurisdiction.

[00:05:55] Speaker 02:
The courts will not allow a facial challenge to go forward.

[00:05:58] Speaker 02:
The courts will apply the summary judgment standard on a motion to dismiss.

[00:06:02] Speaker 02:
We haven't had a chance to offer any evidence on the record before the lower court to show

[00:06:07] Speaker 02:
that the appellees are the proper parties and the only people who could provide the relief required under ex parte young.

[00:06:14] Speaker 02:
And that's why we've named them.

[00:06:15] Speaker 02:
That's why we think the lower court erred in dismissing the complaint.

[00:06:19] Speaker 04:
But under your theory, then, you could have sued the governor, I presume, correct?

[00:06:23] Speaker 02:
No.

[00:06:23] Speaker 02:
Why not?

[00:06:24] Speaker 02:
Well, because the jurisprudence under ex parte young have always said that governors of states are too high up in the organizational chart.

[00:06:32] Speaker 02:
But in the NRDC case and the Committee to Save McCollumney River case,

[00:06:36] Speaker 02:
the director of Caltrans, and the members of the regional board were considered to be appropriate state officials to sue.

[00:06:42] Speaker 02:
Not because they were running the facilities in question, but because they were the heads of the agencies, so they could direct personnel, they could authorize budgetary expenditures, they could authorize contracts, which in this case, as I said before, is going to take many years and many millions of dollars, no doubt.

[00:06:59] Speaker 02:
And we believe that the only people, as alleged in our complaint, that can stop the contamination

[00:07:04] Speaker 02:
and provide the remedy requested.

[00:07:06] Speaker 02:
And it seems to me, until there's a factual record developed before the lower court, there's no way to know whether they are the only people to provide that relief, but they certainly are some people who can provide relief.

[00:07:18] Speaker 05:
The test isn't that they have to be the only person to be able to provide a relief, I assume, right?

[00:07:23] Speaker 05:
Correct.

[00:07:24] Speaker 05:
So what do you think is the test for the appropriate level of, you know, highness?

[00:07:29] Speaker 05:
Yeah, exactly.

[00:07:30] Speaker 02:
Well, I think the test is, as followed in NRDC and the committee to save McCollumy River, it's the head of the agency is... So the Birds of Bright Line rule, the head of every agency is responsible for anything the agency does, and you could sue them under ex parte young.

[00:07:44] Speaker 02:
Well, it depends on the facts of the case.

[00:07:46] Speaker 02:
Where you're dealing with facilities that the heads of the agencies have authorized in control, such as dry cleaning, equipment maintenance, et cetera, they have control over those facilities.

[00:07:56] Speaker 02:
They can order them to be stopped.

[00:07:58] Speaker 02:
More importantly, they can organize material and money and contractors to address the contamination below the property.

[00:08:05] Speaker 02:
So if the case is dismissed as to the heads of the agencies, as a practical matter, there may be no one we can sue because lower level officials may not have the authority to solve the problem.

[00:08:16] Speaker 02:
So we think the focus in a compliance case ought to be on who has the duty and ability to fix the problem.

[00:08:25] Speaker 02:
And we believe it's clearly

[00:08:26] Speaker 02:
the heads of the agencies, just as in NRDC and the regional board in the McCollumy River case.

[00:08:36] Speaker 01:
So... Counsel, Judge Gould, if I could interject a question.

[00:08:43] Speaker 01:
Do you have any authority of the Supreme Court or of the Ninth Circuit that supports your position here?

[00:08:54] Speaker 02:
Well, I would say the Verizon case, Justice Scalia says that to satisfy Ex parte Young, you have to show that there's an ongoing violation of federal law, and you seek prospective relief only, which is certainly true of our complaint, Your Honor.

[00:09:09] Speaker 02:
With respect to the Ninth Circuit authority, there's actually quite a bit of authority.

[00:09:16] Speaker 02:
If you go to the enforcement side, you'll see cases where the attorney general and the governor of various states were sued.

[00:09:23] Speaker 02:
over the question of whether a law should be, that violated federal law should be enforced or not enforced.

[00:09:30] Speaker 02:
And typically the governors are dismissed, but not the attorney general, even though the attorney general is not a line prosecutor.

[00:09:36] Speaker 02:
The courts have said the attorney generals have control over their departments, and therefore they can comply with a court order requiring that the state not prosecute a given law, a given state law in violation of federal law.

[00:09:50] Speaker 02:
So there's quite a bit of authority cited in our case, I believe, Your Honor, that answers that question.

[00:09:58] Speaker 01:
Yeah, those are the Supreme Court case with the name Estelle in it that says that a case that can be brought under record.

[00:10:22] Speaker 02:
I'm sorry, Your Honor, I didn't quite follow that question.

[00:10:25] Speaker 01:
Oh, I think I might be mixing up two different cases.

[00:10:32] Speaker 01:
But I thought there was a case that had the word one party was Estelle, B-S-T-E-L-L-E, that had bearing on it.

[00:10:46] Speaker 02:
I'm not very familiar with that case, Your Honor.

[00:10:48] Speaker 02:
I'd be happy to file a supplemental paper with the court.

[00:10:53] Speaker 01:
Let's forget it.

[00:10:55] Speaker 01:
I think I may have jumbled the case name.

[00:10:59] Speaker 01:
So forget that.

[00:11:01] Speaker 02:
All right.

[00:11:02] Speaker 02:
So hearkening back to the Ninth Circuit language in NRDC, if it seems reasonable to compel a state official with the responsibility to comply

[00:11:13] Speaker 02:
with state law to be subject to an action under ex-party Young, we believe in this case where there's a facial challenge to a complaint and the complaint alleges that the directors of these two agencies have the power to comply with federal law.

[00:11:29] Speaker 02:
the power to take corrective action to both stop the ongoing contamination and to clean up and remediate the contamination, that based on a facial challenge with no other factual record before this court and no evidence that any other lesser official can provide relief that would be required under RCRA, we think the court should remand this case to the lower court.

[00:11:51] Speaker 02:
for an evidentiary hearing to deal with the question of who would have the authority to order relief in order to comply with the record.

[00:11:59] Speaker 04:
Let me just jump in real quickly, sir.

[00:12:00] Speaker 04:
It might sound like I'm making an argument for you, but it helps me understand your argument.

[00:12:04] Speaker 04:
The standard I see in the case law is that the individual being sued has to have a, quote, fairly direct connection.

[00:12:11] Speaker 04:
You would say that it doesn't say the most direct connection.

[00:12:13] Speaker 04:
It just has to be fairly direct.

[00:12:15] Speaker 02:
Well, and that's really true for enforcement cases, not

[00:12:19] Speaker 02:
I mean, even if it were to apply to a compliance case, we certainly would allege the police have a fairly direct connection with the operation of their facilities.

[00:12:26] Speaker 02:
I mean, we know as a factual matter that the director of CDCR has a sustainability program designed to have his facilities comply with federal law.

[00:12:36] Speaker 02:
We think we could prove through depositions of those officials and evidence before the trial court that they do have, in fact, a direct connection with the enforcement

[00:12:45] Speaker 02:
and the direct ability and perhaps the only ability, we believe, to clean up and remediate the contamination, which is an ongoing violation of RCRA.

[00:12:56] Speaker 05:
Why do you need a factual remand then?

[00:12:58] Speaker 05:
Why can't we just look at, as a matter of law, the Secretary's authorities and see that clearly they have that authority?

[00:13:06] Speaker 02:
Well, the Secretary's authorities are very broadly stated, such as they have the ability to manage their facilities.

[00:13:12] Speaker 02:
I know.

[00:13:13] Speaker 05:
Why do you need, exactly, why do you need more facts?

[00:13:17] Speaker 05:
Why don't you just look at the law?

[00:13:18] Speaker 02:
I'm not saying we do, Your Honor, at all.

[00:13:19] Speaker 02:
I'm just saying if the court felt we needed factual clarification, we'd certainly seek leave to amend.

[00:13:25] Speaker 02:
I have an hour, I mean, excuse me, a minute and 47 left.

[00:13:28] Speaker 04:
We'll round up to two minutes for rebuttal for you.

[00:13:31] Speaker 02:
All right.

[00:13:31] Speaker 02:
Thank you, Your Honors.

[00:13:54] Speaker 03:
Good morning, your honors.

[00:13:55] Speaker 03:
May it please the court.

[00:13:57] Speaker 03:
My name is Adam Guernsey.

[00:13:59] Speaker 03:
I'm an attorney at Harrison, Temblador, Hungerford, and Guernsey, and we represent the defendant's appellees in this matter.

[00:14:07] Speaker 03:
The issue before this court is whether an admitted polluter who has failed to clean up their pollution for more than 30 years has properly pleaded subject matter jurisdiction against the state of California in an attempt to shun its responsibilities

[00:14:22] Speaker 03:
onto the very victims of the plaintiff and appellant's pollution.

[00:14:27] Speaker 03:
We assert the appellant has not met its burden, and we respectfully request this court affirm the district court's order granting or dismissing plaintiff appellant's complaint for lack of subject matter jurisdiction.

[00:14:39] Speaker 03:
I think the controlling Ninth Circuit authorities are clear and cannot reasonably be disputed.

[00:14:46] Speaker 03:
Under the ex parte young doctrine,

[00:14:48] Speaker 03:
A plaintiff may bring a suit against a state official if there's an ongoing violation of federal law and the plaintiff is seeking prospective relief.

[00:14:57] Speaker 03:
With respect to that first question, the Ninth Circuit authorities hold that there has to be a special and fairly direct connection to the challenged act.

[00:15:06] Speaker 03:
General supervision and control is not enough.

[00:15:10] Speaker 03:
And as stated in National Audubon Society, there must be direct authority and principal responsibility for the action.

[00:15:20] Speaker 03:
Here, the appellant cites no relevant authority for the position that they need only allege a special and fairly direct connection in the context of duty to enforce cases.

[00:15:32] Speaker 05:
Well, looking at the law, I mean,

[00:15:36] Speaker 05:
Don't you agree that the secretary does have the authority to order these three facilities to stop polluting using that specific detergent and laundry?

[00:15:47] Speaker 03:
I would say under state law that the secretary is not the chief executive officer of these individual institutions in what we're dealing with.

[00:15:54] Speaker 05:
Well, I mean, my question is does he have the authority to order them to stop using the detergent?

[00:16:00] Speaker 03:
I don't think so, no.

[00:16:01] Speaker 05:
He's not the chief executive officer of the institutions, and we have... So if he sent an order, who's the chief executive officer of the institutions?

[00:16:09] Speaker 03:
It's not my obligation to tell the defendants, or excuse me, to tell the appellants who the proper defendants are.

[00:16:14] Speaker 04:
But the court's asking the question counsel, so why don't you answer his question?

[00:16:17] Speaker 03:
I'm not authorized by my client to identify and give a judicial admission as to who the proper defendants in the underlying case are.

[00:16:24] Speaker 05:
No, well, I'm just asking who the chief executive officer is of the... It is the warden of the prison under California law.

[00:16:30] Speaker 05:
So if the warden, if the Secretary McComart ordered the warden to stop using this specific detergent or that causes pollution, the warden does not have to follow that directive.

[00:16:44] Speaker 03:
I only understand what the statutory and regulatory authorities say and I know that

[00:16:49] Speaker 03:
The secretary is not the chief executive officer.

[00:16:51] Speaker 03:
And what we have to remember is ex parte young is a legal fiction, right?

[00:16:57] Speaker 03:
We could ask the same question about that.

[00:16:58] Speaker 05:
Well, just answer my question though.

[00:16:59] Speaker 05:
Does the secretary, I mean, does the warden have to follow the directives of the secretary?

[00:17:04] Speaker 03:
I would say generally yes.

[00:17:06] Speaker 05:
Okay.

[00:17:06] Speaker 05:
So why isn't he the appropriate person then if he could direct the warden to stop using this chemical in the laundry room?

[00:17:16] Speaker 05:
then that would solve the problem, right?

[00:17:18] Speaker 03:
Because under the Ninth Circuit authorities, National Audubon Society, the secretary doesn't have direct authority and primary responsibility for the operation of the state facilities.

[00:17:29] Speaker 03:
That would be the chief executive officer.

[00:17:32] Speaker 03:
But he directs the chief executive officer, so... And the governor directs the secretary, and like I was trying to say, ex parte young is a legal fiction, right?

[00:17:39] Speaker 03:
And we have to draw the line someplace.

[00:17:41] Speaker 03:
Right.

[00:17:42] Speaker 03:
So what's the line?

[00:17:44] Speaker 03:
When you asked for the highness, I would say it's a person who is more directly tied to the operation of the state facilities.

[00:17:53] Speaker 03:
And I think the appellants in their briefing probably know this based on some of the cases they've cited.

[00:18:00] Speaker 05:
More directly tied.

[00:18:01] Speaker 05:
The secretary is in charge of the supervision, management, and control of the state prisons.

[00:18:06] Speaker 03:
I want to talk about National Audubon Society again because in that case,

[00:18:10] Speaker 03:
the plaintiffs brought suit against the Governor, they brought suit against the Secretary of Natural Resources, and then they brought suit against the Director of the Department of Fish and Game, now Fish and Wildlife.

[00:18:20] Speaker 03:
The Secretary of Natural Resources is at the same cabinet level position as the Secretary of CDCR, and the Ninth Circuit in that case said that Eleventh Amendment sovereign immunity barred

[00:18:32] Speaker 03:
the suit against the Secretary of Natural Resources.

[00:18:35] Speaker 03:
So it can't simply be a cabinet-level secretary who has control over a department or officials underneath him.

[00:18:42] Speaker 03:
So what's the line that you want us to draw?

[00:18:45] Speaker 03:
That there's got to be direct authority and primary responsibility.

[00:18:50] Speaker 03:
And I'm saying that is not the secretary.

[00:18:52] Speaker 05:
Well, there's definitely direct authority, correct?

[00:18:54] Speaker 05:
You would agree with that under the statute.

[00:18:57] Speaker 03:
The way I interpret direct, and maybe I have the wrong take of the case where it cited that, is kind of the first in line to make that determination.

[00:19:05] Speaker 03:
I would agree that the Secretary has direct authority over employees under his purview.

[00:19:13] Speaker 05:
So then it's only, the question is, are the part of the test special?

[00:19:17] Speaker 03:
It's primary responsibility from National Audubon Society.

[00:19:24] Speaker 03:
Hence, that's why this Court dismissed the claims against the Secretary of Natural Resources, but kept them in against the Director of the Department of Fish and Game.

[00:19:41] Speaker 03:
I'll note, as noted in our appellee's brief, the majority of the appellant's authorities, they're not binding on this court.

[00:19:47] Speaker 03:
And even if they were, they don't consider the question at issue here.

[00:19:52] Speaker 03:
Mr. Bruin talked about Natural Resources Defense Council versus California Department of Transportation.

[00:19:58] Speaker 03:
When one reads that case, one will see that there's no factual or legal discussion on the requisite connection.

[00:20:04] Speaker 03:
In fact, there is a 10-day trial in that case where the court determined that Mr. Van Lobensoyls was actually

[00:20:11] Speaker 03:
had that requisite connection so I think that case is an opposite here.

[00:20:16] Speaker 04:
Council, I'm sorry to go back to something.

[00:20:17] Speaker 04:
You mentioned the standard was primary responsibility.

[00:20:20] Speaker 04:
I think you used that word.

[00:20:22] Speaker 04:
Direct authority and primary responsibility under the controlling Ninth Circuit authorities, yes.

[00:20:27] Speaker 04:
I've searched for the word primary and I didn't see it in your brief and I didn't see it in the case.

[00:20:32] Speaker 04:
I want to make sure I'm not missing something.

[00:20:35] Speaker 03:
National Audubon Society v. Davis, 307 F3rd at 847.

[00:20:41] Speaker 03:
They allowed the suit to proceed against the director of the Fish and Game Commission because it had, quote, direct authority over and principal responsibility.

[00:20:49] Speaker 03:
So principal, not primary.

[00:20:50] Speaker 04:
Oh, I apologize.

[00:20:51] Speaker 04:
Again, I'm just trying to find the passage.

[00:20:54] Speaker 04:
Okay, so.

[00:20:54] Speaker 03:
Thank you.

[00:20:55] Speaker 04:
All right.

[00:20:56] Speaker 04:
Principal responsibility.

[00:20:57] Speaker 04:
Not sure it matters, but just looking for a word.

[00:21:00] Speaker 04:
Appreciate it.

[00:21:01] Speaker 04:
You can continue.

[00:21:08] Speaker 03:
Also, you know, Mr. Bruin referenced Committee to Save McCollumney River.

[00:21:12] Speaker 03:
That case, again, didn't deal with what was the requisite connection between the defendant and the act that was alleged to violate federal law.

[00:21:20] Speaker 03:
That case merely considered whether past actions could be used to consider future violations.

[00:21:25] Speaker 03:
And in fact, the defendants in that case, the regional board, were actively operating water treatment facilities and water management facilities

[00:21:32] Speaker 03:
at the old quarry.

[00:21:34] Speaker 03:
Again, RWV Columbia Basin College, Mr. Bruin said that case stands for the principle that you have to show the party has power to provide relief.

[00:21:44] Speaker 03:
It doesn't change the controlling Ninth Circuit authorities that there has to be that fairly and special direct connection.

[00:21:50] Speaker 03:
Indeed, the Ninth Circuit in that case actually quoted that line.

[00:21:55] Speaker 03:
And then Mr. Bruin also said that in response to a question that the governor is always too far removed.

[00:22:03] Speaker 03:
challenge that point, because in one of the cases cited by Mr. Bruin, Stanley v. Darlington County School District, dealing with school desegregation plans, the South Carolina District Court actually reviewed South Carolina law and determined that the governor, in fact, had the requisite connection, given his authorities relating to educational issues.

[00:22:24] Speaker 03:
So I think that was an inaccurate statement on Mr. Bruin's part.

[00:22:31] Speaker 03:
So the question here, understanding that these, I think, authorities are quite clear, is whether the appellant met its burden at the district court level to affirmatively show jurisdiction.

[00:22:43] Speaker 03:
And jurisdiction must be affirmatively stated.

[00:22:46] Speaker 03:
It cannot be shown by drawing favorable inferences from the plaintiff's pleadings.

[00:22:51] Speaker 03:
And that's directly from Stewards v. McAlmy River at page five, citing

[00:22:57] Speaker 03:
Norton v. Larny, 266 U.S.

[00:23:01] Speaker 03:
515.

[00:23:02] Speaker 03:
Here, the district court thoughtfully considered the appellant's complaint and then determined that the appellants had not met their burden.

[00:23:11] Speaker 03:
When we look at the appellant's allegations in the complaint, you will see that the district court was correct because the appellants only vaguely allege general supervision and control over the state facilities.

[00:23:24] Speaker 03:
Not only that, a lot of the allegations are made on information and belief without providing the factual basis for why they have that information and belief.

[00:23:34] Speaker 05:
Sorry, just going back to Audubon real quick, we said that the director of the California Department of Fish and Game was the right person.

[00:23:42] Speaker 03:
Correct.

[00:23:43] Speaker 05:
So why is that not equivalent to the secretary?

[00:23:46] Speaker 03:
Because above the director of the Department of Fish and Game is the secretary of natural resources at the cabinet level position.

[00:23:54] Speaker 05:
And then who is below McComber then?

[00:23:57] Speaker 05:
Who would be between McComber and the water?

[00:23:59] Speaker 03:
I don't have understanding of all of the organizational chart of the Department of Corrections and Rehabilitation, but there are people below him.

[00:24:10] Speaker 03:
There's deputies, there are chief executives of institutions, there are water treatment plant operators, there's all

[00:24:19] Speaker 03:
a host of people.

[00:24:21] Speaker 05:
But between McComber and the Dwardens, you can't identify any?

[00:24:25] Speaker 03:
I couldn't identify by name.

[00:24:27] Speaker 03:
I think there are deputies between the two.

[00:24:31] Speaker 03:
But I'm happy to understand the organizational chart better and file a supplemental briefing with you on the matter.

[00:24:39] Speaker 03:
I just don't know the answer to that question right now.

[00:24:43] Speaker 05:
What about Lasso?

[00:24:44] Speaker 05:
How does she fit in?

[00:24:47] Speaker 05:
That's a great question.

[00:24:48] Speaker 03:
I feel like we don't know.

[00:24:51] Speaker 03:
The Department of General Services is essentially the state's business manager.

[00:24:56] Speaker 03:
And, you know, at the risk of arguing beyond the pleadings, since you asked the question, the Department of General Services merely acted in this role as contract real estate support for CDCR.

[00:25:09] Speaker 03:
CDCR was entering a right of entry agreement with the appellants

[00:25:14] Speaker 03:
CDCR goes to the Department of General Services and say, hey, we need to develop a contract for them to come on to our facility and do some testing.

[00:25:22] Speaker 05:
Would that be the equivalent of the federal GSA?

[00:25:24] Speaker 03:
I don't know if you know the answer, but... I don't know the answer to that question, but they do everything, right?

[00:25:30] Speaker 03:
And they do nothing.

[00:25:31] Speaker 03:
Sounds like GSA.

[00:25:34] Speaker 03:
So no offense to DGS or DSA, they have a hand in all sorts of things.

[00:25:41] Speaker 05:
Just one last question for me.

[00:25:42] Speaker 05:
In response to your friends earlier saying if he sued the warden, that it's possible the warden doesn't have authority to authorize all these expenditures that were required, what's your response to that?

[00:25:55] Speaker 05:
And so you have to sue McComber.

[00:25:58] Speaker 03:
Yeah, my response to that is, I don't know if that's true.

[00:26:04] Speaker 03:
Again, I would say that under state law, they're the chief executive officer of the prison, and I don't know the full extent of that power.

[00:26:20] Speaker 03:
But finding no requisite connection in the district court, in his wise discretion, actually granted the appellants

[00:26:27] Speaker 03:
the right to amend their complaint.

[00:26:29] Speaker 03:
This was dismissed without prejudice.

[00:26:31] Speaker 03:
And the appellant did not do so, and we would offer, indeed he could not do so, consistent with Rule 11, which requires investigation to make sure that pleadings are well-grounded in both law and fact.

[00:26:47] Speaker 03:
And as noted by this court on multiple occasions and also other courts, when you're trying to determine what the requisite connection is,

[00:26:57] Speaker 03:
between the defendant and the alleged act that violates a federal law, you must look at state law to determine whether and under what circumstances a particular defendant has a connection with the challenged state law.

[00:27:10] Speaker 03:
And that's in Snook v. Broussa, 153 F3rd at 986.

[00:27:16] Speaker 03:
That's also in Stanley v. Darlington County School District, 879 F SUP at 1362 through 1363.

[00:27:25] Speaker 03:
It's in Baldwin versus Board of Trustees of the Alabama Agricultural and Mechanical University, 290F SUP 1265.

[00:27:33] Speaker 03:
It's in Messines v. Hobbs from this court, 30F4 890 at 903-904.

[00:27:43] Speaker 03:
And it's in Confederated Tribes and Bands of the Yakama Nation versus Locke, where they looked at Washington state law governing the state lottery to determine who the proper defendant was in that case.

[00:27:56] Speaker 03:
We argue that a review of the appropriate California authorities would demonstrate that defendant appellees in this matter, Secretary McComber and Director Lasso, do not have the principal authority over the facilities at issue and they don't have the requisite connection under Ninth Circuit authorities.

[00:28:19] Speaker 03:
And so we ask the question, why is this important, right?

[00:28:24] Speaker 03:
We note that Justice Kennedy in Idaho versus Coeur d'Alene tribe said that ex parte young is a fiction, and it involves line drawing.

[00:28:36] Speaker 03:
We get that.

[00:28:36] Speaker 03:
But appellees would argue that when you're drawing that line, you need to draw that line closer to the constitutional protections offered by the 11th Amendment rather than further stripping those away.

[00:28:50] Speaker 03:
Second, there's real consequences for not allowing cases to

[00:28:55] Speaker 03:
that are not properly pled to proceed, right?

[00:28:58] Speaker 03:
If this case starts out crooked, and we don't know who the proper defendant is, what the proper facts are, we can't avail ourselves of the mechanisms available to us to properly set up the pleadings for tidy resolution of the case.

[00:29:13] Speaker 03:
And I notice that my time is done.

[00:29:15] Speaker 03:
So in the absence of any questions, I would just request that you affirm the district court's decision.

[00:29:21] Speaker 04:
All right.

[00:29:21] Speaker 04:
Very well.

[00:29:22] Speaker 04:
Thank you very much, counsel.

[00:29:23] Speaker 04:
Thank you.

[00:29:34] Speaker 02:
Listening to counsel's argument, he seems to be positing that there is a lower level official at these two agencies who might have the power to provide the relief that could be requested by the court.

[00:29:50] Speaker 02:
But I haven't heard counsel say they do not have the authority to provide the relief that would be ordered by the lower court if we were to succeed on the merits.

[00:29:59] Speaker 02:
And the allegation and the complaint in response to a facial challenge

[00:30:02] Speaker 02:
is that they and only they have the ability to provide the relief requested, the prospective relief requested to stop the ongoing contamination of these facilities.

[00:30:12] Speaker 02:
To say that maybe the warden does, who's in charge of the inmates, really raises a factual question.

[00:30:19] Speaker 02:
Well, can the warden allocate funds?

[00:30:21] Speaker 02:
Can he authorize the award of contracts to third parties?

[00:30:25] Speaker 02:
If we were to go back and sue the warden, he might say under the RWF case, I don't have the authority to do the things the courts require.

[00:30:32] Speaker 02:
Therefore, I cannot be brought into court under ex parte Young.

[00:30:37] Speaker 02:
So I basically come back to the point that this is a facial challenge to the complaint.

[00:30:41] Speaker 02:
It's not a factual challenge to the complaint.

[00:30:44] Speaker 02:
And we allege that the defendants have management and control over their facilities.

[00:30:48] Speaker 05:
So I understand your argument under McComber.

[00:30:51] Speaker 05:
Can you explain it under Lasso?

[00:30:54] Speaker 02:
Well, with respect to the Department of General Services, I believe it owns the property in question.

[00:30:59] Speaker 02:
And they have general maintenance obligations with respect to the property.

[00:31:04] Speaker 02:
This property is covered by state bond issues, which the Department of General Services is involved in.

[00:31:10] Speaker 02:
And we were trying to get access to the property.

[00:31:12] Speaker 02:
We were told that we had to go through the Department of General Services in order to even get access.

[00:31:17] Speaker 02:
So we believe that department is inherently involved in the operation of these facilities.

[00:31:22] Speaker 04:
along with the Department of Corrections.